EEOC Has a Limited Duty to Conciliate, Supreme Court Rules

Before filing suit against an employer, the Equal Employment Opportunity Commission has a duty to notify the employer of the claim and give the employer an opportunity to discuss the matter. But the EEOC has no duty to engage in good faith negotiations with the employer, according to the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC (April 29, 2015).

The case arose after the EEOC investigated a sex discrimination charge against Mach Mining in which the charging party claimed the company had refused to hire her as a coal miner because of her sex. The EEOC determined that reasonable cause existed to believe the company had engaged in unlawful hiring practices. Under Title VII, if the EEOC finds reasonable cause, it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” The EEOC may sue the employer only if it is unable to secure from the employer a conciliation agreement acceptable to the EEOC. Pursuant to these statutory obligations, the EEOC sent a letter inviting Mach Mining to participate in informal conciliation proceedings and notifying them that a representative would be contacting them to begin the process. A year later, the EEOC sent Mach Mining a second letter, stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and that any further efforts would be “futile.” The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring. Mach Mining asserted in its answer that the EEOC had “failed to conciliat[e] in good faith” prior to filing suit. The EEOC moved for summary judgment on that issue, contending that its conciliation efforts are not subject to judicial review.

The case raised a few important questions. Can a court review the EEOC’s efforts to conciliate? If so, what is the scope of review? And does the EEOC have to negotiate in good faith, something that it apparently failed to do in the MachMining case?

The answers, according to the Supreme Court, are: yes, limited, and no. Yes, a court can review the EEOC’s efforts to conciliate. But the scope of review is limited to ensuring that the EEOC has notified the employer about the specific allegations, described which employees have allegedly suffered, and “tried to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” And no, beyond these obligations, the EEOC does not have a duty to negotiate in good faith. “Congress[,]” the court wrote, “granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.”

So where does that leave employers when the EEOC finds reasonable cause? The answer seems to be that employers can take little solace in the fact that the EEOC has an obligation to conciliate before filing suit. The duty to conciliate is limited, and under Mach Mining, so too is a court’s authority to review whether the EEOC has met its obligations.